Guess Who's Back?

Deja vu? How Appealing reports that Michael Newdow has launched another suit in federal court challenging the constitutionality of the "under God" clause in the Pledge of Allegiance. And according to the Sacramento Bee, this time he has co-plaintiffs (all of whom have full custody of their children, the kink that derailed Newdow's original suit).

The full text of Newdow's brief can be accessed here. It presents some compelling arguments. At the very least, it seems to knock flat the notion that the addition of "under God" was a religiously "neutral" act. It also presents some damning evidence of societal discrimination against atheists. There is simply no way to pretend that the United States is not overtly hostile to atheists without massively distorting the historical record. Unfortunately, this may not help Newdow's cause as much as it should. Jack Balkin, Professor of Constitutional Law at Yale University. "What Brown Teaches us about Constitutional Theory." Virginia Law Review Vol. 90, No. 6, October 2004. Pg. 1531-1577

"Law students are usually taught that it is the job of courts to protect what United States v. Carolene Products [304 US 144, 152, n.4, (1938)] called 'discrete and insular minorities.' These are groups that have suffered a long history of discrimination, are relatively politically powerless, and are unable to protect themselves in the political process. This portrait is quite misleading. In general, courts will protect minorities only after minorities have shown a fair degree of clout in the political process. If they are truly politically powerless, courts may not even recognize their grievances; and if they have just enough influence to get on the political radar screen, courts will usually dismiss their claims with a wave of the hand. Conversely, as a reform movement for minority rights gains prominence through political protest and legislative lobbying, courts will increasingly pay attention to minority rights and take their claims more seriously." (1551-1552)

The courts aren't as proactive about defending minority rights as we like to think they are. For the most part, it takes a lot more political influence--far more than atheists can currently muster--to bring about legal change.

One question I have is whether or not the 9th circuit will consider it bound under its ruling in Elk Grove to declare the pledge unconstitutional. Although the Supreme Court reversed its decision, it did not do so on the basis of merits. Since the facts of this case are identical to those in Elk Grove except for the issue of custody, it would stand to reason that the 9th circuit would apply the same analysis in this case as it did in the previous case. But I don't think it is BOUND to do so, which could get interesting.

I also question Newdow's tactics in this case. According to the brief, he has filed suits in courts across the nation. This seems like he is deliberately trying to create a circuit split and take the issue back to the Supreme Court. Nothing could be worse. As I noted in my very first substantive blog post, we dodged a bullet last time. The standing loophole let the Court defuse the firestorm around the case without closing the door to future litigation. They don't have that excuse this time around, and I am not convinced that the 3 judges who explicitly said the clause should be upheld could not pick off 2 judges from the majority to uphold it in law. This becomes even worse when one reads Justice Thomas' concurrence in Elk Grove. In it, he essentially agrees (as I do) that current precedent would mandate that "under God" is unconstitutional. But then, in a stunning evisceration of the principle of stare decisis, he proceeds to argue that this gives us a perfect opportunity to overrule the offending precedents and restore 1st amendment law to its former position prior to Lee v. Weisman. If he can sway enough judges to his position (and I do believe that he's right in a sense, the only way to uphold the pledge is to overrule Lee), this could rapidly become the largest legal setback for religious minorities in the past 50 years.